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United States. Office of Indian Affairs / Annual report of the Commissioner of Indian Affairs, for the year 1903, Part II
([1903])

Report of the Commission to the Five Civilized Tribes,   pp. 1-190 ff. PDF (101.5 MB)


Page 23

COMMISSION TO THE FIVE CIVILIZED TRIBES. 
had business interests in Missouri and voted at different elections in 
that State. They retained, however, the control of their tribal prop- 
erty and business interests in the Cherokee Nation and voted also at the
Cherokee elections. The Commission decided that they were not bona 
fide residents of the Cherokee Nation on June 28, 1898, as contem- 
plated by that portion of the Curtis ActIwhich provides: 
No person shall be enrolled who has not heretofore removed to and in good
faith 
settled in the nation in which he claims citizenship- 
and therefore not entitled to enrollment. This decision was approved 
by the Secretary of the Interior, but the cases were afterwards reopened
and submitted to the assistant attorney-general for the Department of 
the Ihterior, who held, in substance, that abandonment by a citizen 
of his domicile was a question of intention; that the matter of residence
in the Cherokee Nation was governed by the Cherokee constitution, 
which provides: 
Whenever any citizen shall remove with his effects out of the limits of this
nation 
and become a citizen of any other government all his rights and privileges
as a 
citizen of this nation shall cease- 
and that paragraph 11, section 21, of the Curtis Act, above quoted, was 
not applicable to the facts in these cases. Acting on this opinion of 
the assistant attorney-general, the Secretary of the interior reversed 
the decision of the Commission and ordered that the applicants be 
enrolled. 
Another case along the same general line, but involving a somewhat 
different principle, was that of Clement G. Clarke et al. (Cherokee, 
D 171). The facts in that case are worthy of mention, and briefly stated
they are as follows: 
Clement G. Clarke was a white man and a resident of Connecticut. 
In 1891 he married, according to Cherokee law, one Martha Cobb, a 
citizen by blood of the Cherokee Nation. Immediately after his mar- 
riage he went with his wife to the State of Connecticut, where he 
attended college. On graduating he entered the ministry and took 
charge of a church there. He never resided in the Cherokee Nation, 
but made his home in Connecticut and exercised the rights of citizen- 
ship in that State. His wife and children made their home with him. 
Mrs. Clarke. however, continued to own a farm, improvements, and per- 
sonal property in the Cherokee Nation. The Commission denied their 
application for enrollment as members of the Cherokee Nation on the 
ground of nonresidence, holding that Clarke had never established a 
residence in said nation, and that the residence of his wife and children
was that of the husband and father. This decision was approved by 
the Secretary of the Interior as to Clement G. Clarke, but reversed as 
to his wife and children, the Department holding that by no act of hers 
had Mrs. Clarke abjured citizenship; that she had never voluntarily 
dissolved her relations with the Cherokee people, as indicated by the 
retention of her tribal property, and that the citizenship of the minor 
children was that of their mother. 
The customs which prevail among a certain class of Cherokees, grow. 
ing out of a somewhat vague conception of marriage relation and mari- 
tal rights and duties, are often at variance with the written law, which
gives rise to many difficult questions. The subject of abandomert, the 
interpretation of the Cherokee law governing such matters, and the 
question as to what evidence is admissible to establish the facts, are 
fruitful sources of legal problems. 
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